Tag: Ontario Superior Court of Justice

21 May

Hull on Estates #572 – Will Challenges and Mistake of Fact

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This week on Hull on Estates, Paul Trudelle and Christina Canestraro discuss Cavanagh et al. v Sutherland et al., in which the Ontario Superior Court of Justice addresses questions of fact and law related to motions for summary judgment and mistake of fact.

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23 Apr

Hull on Estates #570 – Drafting Solicitors and Will Challenges

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This week on Hull and Estate, Natalia Angelini and Sydney Osmar discuss Dale v Prentice, in which the Ontario Superior Court of Justice addresses whether a drafting solicitor can represent the estate in a will challenge.

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13 Nov

Hull on Estates #559 – The Importance of Comprehensive Management Plans

76admin Estate & Trust, Estate Planning, Hull on Estates, Litigation, Podcasts, Uncategorized Tags: , , , , , , 0 Comments

This week on Hull on Estates, Natalia Angelini and Nick Esterbauer discuss the recent decision of the Ontario Superior Court of Justice in Connolly v Connolly and PGT, and the importance of filing comprehensive management plans in support of applications for appointment of guardians of property.

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17 Apr

Hull on Estates #544 – Consolidation of Family Law Act and Dependant Support Claims

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Today on Hull and Estates, Stuart Clark and Umair Abdul Qadir discuss the recent decision in Cohen v Cohen, 2018 ONSC 1613, in which the Honourable Justice Maranger discussed the Ontario Superior Court of Justice’s jurisdiction to consolidate applications for equalization commenced pursuant to the Family Law Act with applications for dependant’s relief under Part V of the Succession Law Reform Act. You can read more about the Cohen decision on our blog.

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05 Apr

Hull on Estates #461 – Recent Developments in Physician-Assisted Death

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This week on Hull on Estates, Paul Trudelle and Nick Esterbauer discuss recent developments in the prohibition against physician-assisted death, including the exemption granted by the Ontario Superior Court of Justice last month in A.B. v. Canada (Attorney General). (http://bit.ly/1RILY06)

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01 Mar

Hull on Estates #456 – Public Policy and Testamentary Freedom

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This week on Hull on Estates, David Morgan Smith and Lisa Haseley discuss public policy and the recent Ontario Superior Court decision of Royal Trust Corporation of Canada v. The University of Western Ontario et al. http://bit.ly/1R83FTR

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22 Dec

Hull on Estates #446 – Attorney Application for Directions

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This week on Hull on Estates, Paul Trudelle and Noah Weisberg discuss the recent Ontario Superior Court of Justice decision of Keller v. Wilson, 2015 ONSC 6962, pertaining to applications for directions by Attorneys and passing of Attorney accounts pursuant to the Substitute Decisions Act.

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22 Dec

Estate Trustee Removal

Noah Weisberg Estate & Trust, Estate Planning, Executors and Trustees, Trustees Tags: , , , , , , 0 Comments

The recent decision in Bunn v. Gordon demonstrates how a breakdown in the relationship between an estate trustee and beneficiary may lead to the removal of the estate trustee.

The Testator made a Will naming his girlfriend of three and a half years as estate trustee.  The Will, amongst other things, leaves real property and a portion of the residue to his two children to be held in trust by the estate trustee until attaining the age of 21.  As a result of the age of the children, the estate trustee’s office will last until at least the year 2021.

From the outset, the administration of the estate was contentious, such that the children commenced an application under s 37(1) of the Trustee Act for the removal and replacement of the estate trustee.  The law with respect to estate trustee removal has remained relatively consistent with the governing principle being the welfare of the beneficiaries and whether the continuance in office of an estate trustee will likely prevent the estate from being administered.  From this the courts do not take lightly the wishes of the deceased as expressed in the Will.

The children raised four examples in support of their application to remove the estate trustee:

  • failing to provide the children with a copy of the death certificate, despite multiple requests;
  • failing to account for a Kodiak trailer demonstrating a lack of care with the estate assets;
  • selling a desk and cupboard which was of sentimental value to the children, showing a disregard for the interests and wellbeing of the beneficiaries; and
  • failing to report on the sale of real property.

Individually, the evidence in and of itself was not sufficient to call for the removal of the estate trustee.  However, the court held that collectively the relationship between the estate trustee and children had broken down and that the antipathy towards the beneficiaries precluded the dutiful administration of the estate.  Although the behaviour was not solely the fault of the estate trustee, the court indicated that it is the estate trustee who owes the fiduciary obligation.  Therefore, the estate trustee was removed.

Noah Weisberg

14 Dec

Fiduciary Duties of Joint Account Holders

Ian Hull Joint Accounts Tags: , , , , , , 0 Comments

In a recent judgment, the Ontario Superior Court of Justice considered whether joint account holders owe a fiduciary duty with respect to the management and operation of a joint account.

The facts of MacKay Estate v MacKay, 2015 ONSC 7429 are not unusual. Dawn MacKay (“Dawn”) was married to Tom MacKay (“Tom”) one of Annie MacKay’s (“Annie”) three sons. Annie and Dawn had a very close relationship. In early 1999, Annie made a Power of Attorney for Property in favour of Tom. Shortly thereafter, Annie, with Tom’s assistance, named Dawn as joint bank account holder. At trial, Dawn advised that she and Annie had agreed that Dawn would assist Annie with her banking and her care, as well as provide companionship, in exchange for compensation. There were no specific terms agreed to at the time.

Around 2003, Dawn began making transfers from the joint account to herself. She stated that the transfers were in the nature of compensation and were loosely based around payment of $250.00 per week for services provided. After Dawn and Tom separated in 2008, Tom commenced an action as Annie’s litigation guardian seeking an accounting, payment of monies found due, damages for breach of trust, and punitive damages. After Annie died in 2010, in 2012, Tom, as Estate Trustee, continued the action on behalf of Annie’s estate.

The main issues considered by the court were (1) whether Dawn, as a joint account holder, owed a fiduciary duty to Annie in the management and operation of the joint bank account; (2) whether Dawn breached her fiduciary duty by making payments to herself from the account; and (3) whether Dawn was liable to repay the amount of the payments made.

To determine whether there was a fiduciary relationship, the court followed the guide from Frame v Smith, [1987] 2 SCR 99, to consider whether:

i. the fiduciary has scope for the exercise of some discretion or power;
ii. the fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests; and
iii. the beneficiary is vulnerable to or at the mercy of the fiduciary holding the discretion or power.

Based on these indicia, the court found that Dawn did owe a fiduciary duty to Annie and that Dawn had acted as a trustee de son tort. The court also found that in making the payments to herself out of the joint bank account, Dawn had not breached her fiduciary duty and that, in fact, the payments were reasonable in the circumstances.

Although this case seems to establish that it is possible for a joint bank account holder to owe a fiduciary duty, it is not entirely clear from the decision whether this finding will apply only in the context of a non-contributing individual who is added to a pre-existing account in order to assist the account holder, or whether this may apply to all those who hold bank accounts jointly.

Thanks for reading.

Ian Hull

21 Sep

Joint Tenancy, Survivorship, and Adverse Possession

Ian Hull Estate & Trust, General Interest Tags: , , , , , , , 0 Comments

A recent decision of the Ontario Superior Court of Justice, Post Estate (Trustee of) v Hamilton, 2015 ONSC 5252 (available on Westlaw) considered a rather unusual set of facts with respect to joint tenancy and an interesting application of the equitable remedy of adverse possession.

Edward and Heather had been common law spouses several decades ago. They purchased a home together (the “home”) in 1980, as joint tenants. Three years later, Edward and Heather ended their relationship, and Heather moved out of the home they had bought together. Edward lived in the home ever since, until his death in December 2014. Heather has not been heard from since 1983.

When Edward died last year, his Estate ran into a roadblock with the home. Edward’s family had understood that the home was in Edward’s name alone, but were surprised to find that Heather and Edward still owned the home together as joint tenants. Under the law of joint tenancy, when one of the joint owners dies, the asset passes to the surviving joint tenant, by right of survivorship. Theoretically, therefore, the home should have become Heather’s property.

The wrinkle in this case was that, despite “strenuous efforts”, Heather could not be found. Edward’s Estate Trustee then brought an Application for an Order vesting title in the home in the Estate. The issue considered by the Honourable Justice MacDougall was thus, whether one joint tenant can acquire full title to property by way of adverse possession. In order to establish title by possession, Justice MacDougall stated that a party must show three things:

  • i. Actual possession for the statutory period by him/herself and those through whom s/he claims;
  • ii. That such possession was with the intention of excluding from possession the owner or person entitled to possession; and
  • iii. Discontinuance of possession for the statutory period by the owners and all others, if any, entitled to possession.

With respect to the first and third requirements, Edward had actual possession of the home by himself for 32 years, which is well beyond the 10 year statutory period required. With respect to the second requirement, the court found that, although Edward did not have a “clear and direct intention” to exclude Heather, the court can still infer a presumed intention to exclude and consequently find in favour of adverse possession. In this case, Justice MacDougall was able to infer such presumed intention due to the facts that Edward believed he had full ownership of the house, he paid all the expenses for the house for 32 years, and made mortgage payments and renewed the mortgage without Heather’s signature or agreement.

Thanks for reading.

Ian Hull

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